097-NLR-NLR-V-36-FERNANDO-v.-ISMAIL-et-al.pdf
Fernando v. Ismail.
447
1927
Present: Fisher C-J. and Schneider S.P.J.
FERNANDO v. ISMAIL et al.
4—D. C. Colombo, 13,809.
Res judicata—Property seized in execution—Claim upheld—Failure ofjudgment-creditor to bring 247 action—Action for damages for wrongfulseizure—'Defence that the transfer is in fraud of creditors.
Where, in execution proceedings, a claim is upheld, the failure on thepart of the execution-creditor to bring an action under section 247'of the Civil Procedure Code does not debar him from proving, in anaction to recover damages for wrongful seizure, that the transfer inrfavour of the claimant was in fraud of creditors.
448
FISfiER C.J.—Ferruv
y^PPEAL from a judgment of the District Judge of Colombo*
Balasingham (with him Retnam) for defendant, appell *■-
Keuneman, for plaintiffs, respondent.
February 21, 1927. Fisher C.J.—
We have been urged to say that by reason of the defendants nothaving taken steps under section 247 of the Civil Procedure Code toestablish their right to seize and sell in execution the property in question,they can now in an action for damages for wrongful seizure be preventedfrom proving that the transfer in favour of the claimant was in fraudof creditors. The reason why we are asked to say this by counsel isbecause of the words at the end of section 247, that the order in a claimInquiry shall be conclusive. Now, if the section is carefully studied,it will be found that the word “ conclusive ” does not mean, as mybrother pointed out, conclusive for all purposes but conclusive as to thejudgment-creditor’s right to seize and sell the property. The defendantsin this case do not seek to establish a right to seize and sell the propertyin question but they say that they have been the victims of fraud on thepart of the plaintiff and another man. It seems to me that if such afraud is proved it is a good answer to an action for wrongful seizure.To hold otherwise will be to open the door to a curious state of things.The judgment-debtor and another man might conspire and misleadthe judgment-creditor and so induce him not to proceed to execution.There is nothing in section 247 which obliges us to hold that the defendantsare precluded from establishing fraud as between the plaintiff and a thirdperson. In this case the failure to take action under section 247 is notconclusive against the defendants. We therefore think the learnedDistrict Judge was wrong in his decision, and the action must be remittedto him for trial.
The defendants are entitled to the costs of the*.appeal.
Schneider SP. J.—I agree.
Sent back.
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